[Copyrighted Material Omitted]
Arapahoe County District Court No. 12CV1672. Honorable Charles M. Pratt, Judge.
JUDGMENT AFFIRMED IN PART, VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS.
Anderson Hemmat & McQuinn, LLC, Chad P. Hemmat, Greenwood Village, Colorado; The Viorst Law Offices, P.C., Anthony Viorst, Denver, Colorado, for Plaintiff-Appellant.
Frank Patterson & Associates, P.C., Thomas J. Seaman, Karl A. Chambers, Greenwood Village, Colorado, for Defendant-Appellee.
Opinion by JUDGE GABRIEL. Taubman and Booras, JJ., concur.
[¶1] In this case arising out of a motor vehicle accident, plaintiff, DeeAnna Soicher, appeals the trial court's judgment, entered on a jury verdict, in favor of defendant, State Farm Mutual Automobile Insurance Company. (The court also entered judgment in the total amount of $125,000 against the driver of the other vehicle, Anthony D. Manueke, who, along with State Farm, was a defendant in the trial court. Manueke has not appealed the judgment against him and, thus, is not a party here.)
[¶2] We conclude that the trial court erred in entering judgment for State Farm based on Soicher's alleged noncooperation because (1) State Farm did not properly plead noncooperation as either an affirmative defense or a failure of a condition precedent and (2) the parties did not try this issue by express or implied consent. We further conclude that the trial court properly refused to instruct the jury on the unreasonable denial of Soicher's claim because we agree with the court that this case involved an alleged unreasonable delay in paying, not an alleged unreasonable denial of, insurance benefits.
[¶3] Accordingly, we vacate the portion of the judgment relating to Soicher's claims against State Farm, and we remand this case with instructions that the trial court enter judgment for Soicher on her breach of insurance contract claim against State Farm and for State Farm on Soicher's remaining claims against it.
[¶4] At the time pertinent here, Soicher had a motor vehicle insurance policy with State Farm. This policy provided her with $250,000 in uninsured motorist (UM) coverage.
[¶5] In 2009, Manueke, who was uninsured, rear-ended another car, which in turn collided with Soicher's vehicle. Soicher suffered a concussion in the accident, and this concussion exacerbated a prior mild traumatic brain injury.
[¶6] Once State Farm learned of Soicher's accident, it promptly and repeatedly requested that Soicher complete and return a medical authorization, a medical provider summary sheet, and a questionnaire, as she was required to do under her insurance contract. After Soicher failed to respond to these requests for approximately six months, State Farm sent her a letter, stating that based on Soicher's noncooperation, State Farm (1) reserved its rights under Soicher's insurance policy, including the right to deny coverage in its entirety; and (2) did not waive any terms or conditions of the policy or any other rights that it had. Seven months later, still lacking any cooperation from Soicher, State Farm closed Soicher's claim file.
[¶7] Approximately seven months after that, Soicher retained counsel, and counsel contacted State Farm, indicating that he was going to be representing Soicher. State Farm then reopened Soicher's claim, and counsel subsequently provided the previously requested documents.
[¶8] Thereafter, Soicher made a settlement demand on State Farm, requesting that State Farm pay her, among other things, her UM policy limit of $250,000. State Farm, which was still investigating Soicher's claims, did not respond immediately, and because the statute of limitations was approaching, Soicher filed the present lawsuit. In this suit, Soicher asserted claims against State Farm for breach of the insurance contract, breach of the duty of good faith and fair dealing, and violations of sections 10-3-1115 and 10-3-1116, C.R.S. 2014, based on State Farm's alleged unreasonable delay or denial of payment on Soicher's claim for UM benefits. She also alleged that she had performed all obligations imposed on her by her insurance policy.
[¶9] Several weeks after Soicher filed her complaint, State Farm responded to her settlement demand, offering to settle for $40,997.60. Soicher rejected this offer and proceeded to litigate her claims. In the course of the litigation, State Farm advanced Soicher the $40,997.60 that it had offered, notwithstanding the fact that it had obtained information that led it to conclude that its initial evaluation of Soicher's claim was higher than it should have been.
[¶10] As pertinent here, in its answer to the amended complaint, State Farm generally denied that Soicher had performed all obligations imposed on her by her insurance policy and asserted as an affirmative defense that Soicher had " failed to carry out her own duty of good faith and fair dealing." State Farm did not explicitly assert an affirmative defense of noncooperation.
[¶11] The case proceeded to a jury trial, and just before the close of the evidence, State Farm submitted a proposed verdict form that apparently implicated the defense of noncooperation. (The proposed verdict form is not in the appellate record.) Soicher objected to this proposed verdict form, arguing, among other things, that State Farm had not properly or timely given her notice of any such contract-voiding theory of defense. The court, however, did not immediately rule on this objection. Rather, it decided to include in the final verdict form special interrogatories, asking, among other things, (1) whether Soicher had failed to cooperate with State Farm and (2) if so, whether the failure to cooperate was material and substantial such that State Farm was disadvantaged in its effort to investigate Soicher's claim. The court then requested further briefing on the propriety of State Farm's proffered noncooperation defense and indicated that it would enter judgment on the jury's findings after it had determined whether State Farm would be permitted to pursue that defense.
[¶12] As pertinent here, the jury ultimately returned a verdict as to State Farm, finding that (1) Soicher had failed to cooperate with State Farm; (2) her failure to cooperate was material and substantial such that State Farm had been disadvantaged in its effort to investigate Soicher's claim; (3) State Farm did not unreasonably delay payment of UM benefits to Soicher; (4) State Farm knew or recklessly disregarded the fact that its conduct was unreasonable; and (5) any unreasonable conduct by State Farm did not cause Soicher damages.
[¶13] Subsequently, the court ruled that the issue of Soicher's noncooperation had been pleaded by implication, namely, through State Farm's affirmative defense of Soicher's failure to fulfill her own duty of good faith and fair dealing. In addition, the court noted that (1) Soicher had stipulated in the trial management order that the contract claim for UM benefits was subject to the terms and conditions of the insurance policy and (2) State Farm's trial exhibits contained the section of the policy concerning Soicher's duty to cooperate. In light of these circumstances, the court found that Soicher knew or should have known that she would not be able to recover her UM benefits if a jury found that she had failed to cooperate. The court thus entered judgment for State Farm on all of Soicher's claims against it.
[¶14] Soicher now appeals.
[¶15] Soicher first contends that the trial court erred in entering judgment based on State Farm's noncooperation defense because (1) noncooperation is either an affirmative defense ...